Holmes, but not Sherlock #2

"The life of the law has not been logic; it has been experience." This is a famous quote from Oliver Wendell Holmes and summarizes his feeling that the law is not written in stone--like moral law--but is rather subject to circumstances. This idea looks like a problem because there is a "holy book" quality about the constitution where the foundation of equality is moral, not legal, faith-based, not logical. This leads to dangerous thinking--should a moron vote, a felon carry a gun, a pyromaniac be a fireman--and places the burden of decision squarely on the shoulders of the people whom the writers of the constitution feared.

“If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” Holmes said this In Gitlow v. New York. So the current culture should have the right to rewrite the law--even if that rewrite violates the law they are working under--if they have enough votes. So, for example, the right of assembly, which has been exercised in the revolutionary's debates, can be abrogated by the assembly's vote, sort of a living by contradiction like a breathing oxymoron.

Holmes made his concepts more concrete with the “bad-man” theory of law: “[I]f we take the view of our friend the bad man we shall find that he does not care two straws” about either the morality or the logic of the law. For the bad man, “legal duty” signifies only “a prophecy that if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money.” The bad man concerns himself only with “material consequences". This is viewed as a conceptual breakthrough, as if the "bad man" was previously thought to be concerned with morals and the abstract foundation of law and only now we see him as a "bad man" who doesn't. But Holmes, in seeing a law that is practical in the mind of the law's offender--who sees the law in only its practical application-- somehow thinks the law makers, who create the fabric of society, should do the same.

Behind all this is the confidence in modern man's analytic ability, his altruism, modern science and the accuracy of the softer social science. Progressivism is, regrettably, living in the past.